Page: 6
In these circumstances – independently of any other considerations - the facts
alleged with respect to the Crown's operational negligence with respect to the
Vitek Proplast implants are, in my judgment, insufficient to give rise to
relationship of proximity between it and Mr Drady. Under the FDA and the
regulations, the Crown does not regulate devices generically or by categories. Its
powers and responsibilities are confined to dealing with particular devices sold, or
to be sold, in Canada on a case by case basis. The Crown's alleged negligence in
respect of the defaults of the Vitek Proplast implant vendor cannot create
proximity with Mr Drady if it is not alleged that he received such a device.
Independently of any other consideration, a causal relationship between the
plaintiff, the device and its vendor is an essential link in the creation of a
relationship of proximity. …21
[19] The device implanted in Kevan Drady did not use or contain Proplast. It relied on silastic.
The Court of Appeal in Drady considered the Superior Court decisions in both that case and this
one. It confirmed the decision that, in Drady, there was no proximity between the Crown and the
plaintiff. There being no proximity, it was plain and obvious that the action could not succeed.
[20] At about the same time as the decision of the Court of Appeal in Drady v. Canada it also
released its reasons in Attis v. Canada22 which considered the same issues, albeit in relation to
breast implants rather than jaw implants. The legislative scheme did not demonstrate any
intention to impose a private law duty of care23 and there was no direct communication or
interaction between the government and the plaintiff in relation to the operation or
implementation of a policy such that a duty of care could arise. There was no allegation of any
representations by Health and Welfare Canada that were capable of supporting a relationship of
proximity.24
[21] Both Drady and Attis made reference to Sauer v. Canada (Attorney General).25 It runs
counter to their determination concerning the absence of proximity. In Sauer, a farmer
commenced a class action as a result of a cow, in Alberta, contracting “BSE” (colloquially “Mad
Cow Disease”). Some countries closed their borders to Canadian beef. The law suit was for
negligent regulation of the cattle industry and claimed for the financial losses suffered as a result.
In certifying the action, the judge considering the motion held that a duty of care had been
disclosed in the pleadings. The Court of Appeal made this observation even though the judge had
not directly addressed the question.26 The motion judge had moved directly to the issue of
21 Drady v. Canada, 2007 CanLII 27970 (ON SC), [2007] CarswellOnt 4631, [2007] OJ No 2812 (QL), 159
ACWS (3d) 177 at paras. 23 and 24
22 2008 ONCA 660 (CanLII), 93 OR (3d) 35, 300 DLR (4th) 415, 254 OAC 91, 59 CPC (6th) 195, [2008] OJ No
3766 (QL) , 169 ACWS (3d) 684
23 Attis v. Canada (Health), supra (fn. 22) at para. 62
24 Ibid at para. 66 and 68
25 Sauer v. Canada (Attorney General), 2007 ONCA 454 (CanLII), 225 OAC 143, 31 BLR (4th) 20, 49 CCLT (3d)
161, [2007] OJ No 2443 (QL), 159 ACWS (3d) 306
26 Taylor v Canada (Health), 2010 ONSC 4799 (CanLII), 81 CCLT (3d) 106, [2010] OJ No 5936 (QL) at para. 30